Green light for SAITM

Putting an end to a long-held dispute, the Court of Appeal on Tuesday informed that medical degree holders of SAITM private university Malabe could register with the Sri Lanka Medical Council. Reproduced here are highlights from the landmark judgement.

Part I of this article appeared yesterday

Where the statute prescribed the manner in which the statutory power has to be exercised, the power must be exercised in that manner alone. If the exercise of power is in violation of section 19C of the Medical Ordinance (as amended) it cannot be regarded as an act done in pursuance of the Ordinance. If the administrative body created by the statute acts beyond the powers vested on the body by the statute such an act is ultra vires and the courts have a duty to quash it. In the said circumstances when the President SLMC replied the Petitioner stating that he has no hesitation or reluctance in vehemently resisting any legal action, without any legal basis under the Medical Ordinance (as amended) for doing so, and the subsequent conduct of the 151 Respondent SLMC when the Petitioner filed the present application before this court, and also the conduct of the 151.

Respondent as discussed above with regard to the recommendations reflected in the report, the paper notices issued and the two standards maintained when holding investigations at Degree Awarding.

As referred by me earlier in this judgement the 1st Respondent at the very commencement of the argument raised several preliminary objections to the maintainability of the present application. This court at that stage decided to consider those preliminary objections in the final order. Whilst discussing the grounds raised by the 1st Respondent in the main mater I have considered some of those preliminary objections as well.

In Jayalingam V. The University of Colombo CA application No 415/81, we find that the Petitioner in that case, who was an external student, asked for a writ of Mandamus on the University of Colombo to accept his application and permit him to sit the Final Examination in Laws, on the basis that it was the University that had the power to conduct external examinations for enabling those who are not students of the University, to obtain degrees of the University.

Learned Counsel for the Petitioners relied on the decision in Haniffa V. The Chairman, U.c., I I Nawalapitya (supra). In this case the Petitioner made the chairman, U.c., Nawalapitiya, the Respondent to his petition. He was not named Tambiah, J pointed out that the Chairman was not a juristic person; that even if the Chairman was a juristic person, since disobedience to writs of Mandamus is punishable as contempt of Court, a person who asks for a Mandamus to compel a public officer to perform a duty should name the public officer who holds the office. It is in this context, that Tambiah J said, “1 fail to see how we can issue a Mandamus on a juristic person.”

In Pathirana V Gunasekara 66 NLR 464,467, Weerasooriya, S.PJ observed,

“Where officials having a public duty to perform, refuse to perform it, Mandamus will lie on the application of a person interested to compel them to do so. The rule would also apply where a public body fails to perform a public duty with which it is charged”.

Apart from this, the Petitioners presented their petition on the basis that the Respondents are the persons who are entrusted with the duty of carrying out the Obligation which was reposed in the University, to hold the 2nd MBBS examination for them only. At the time they were made Respondents, the 1st respondent held the office of Vice Chancellor by virtue of an appointment made by the Chancellor, and 2nd Respondent held the office of Dean of the Faculty of Medicine, by virtue of her election by the Faculty (Sections 34 (1) and 49 (1) of the Universities Act). Under the Emergency Regulation, they cease to hold their respective office. The 1st Respondent now holds the office of Vice Chancellor on an appointment made by the Minister (Reg. 3(2); the 2nd Respondent now hold office as Dean on an appointment made by the Vice Chancellor. It is now sought to compel the 1st Respondent to perform a duty on the Basis that he has, by reason of Regulation 4 (a), absorbed in himself all the powers and duties of the University. Would not all these result in a change in the character of the petition and in the 34 conversion of the original petition in to a petition of another kind? What if the regulations are withdrawn tomorrow? Then the argument of learned Counsel for the Petitioners, based on the Emergency Regulations, loses its validity.

In our view the proper body to be directed by a Mandamus, assuring that a writ can go is the University of Colombo and not the Respondents to this application.

In the case of the Government Registered Medical Officers Association and another V. Hon. John Senevirathne Minister of Health and four others CA Application 1498/2000 CA minute dated 24.02.2004 K. Sripavan J (as he was then) issued a writ of Mandamus directing the 4th Respondent Sri Lanka Medical Council to take steps in terms of law duly recognize the MD degree awarded.

Recently in the case of Ekanayake V. Attorney General and two Others CA Application 58/2012 (CA minute dated 25.04.2016) this court re affirm the position taken in the Abeydeera’s case referred to above and observed that “the law seems to have moved away. Today a juristic person, no less than a natural person, can be commanded to carry out its public duty” and rejected the argument that Mandamus cannot lie against a public body such as the Sri Lanka Ports Authority.

When considering the decisions referred to above I see no merit in the said argument raised by the 1st respondent.

Failure to avail of an Appeal to the Minister

The 1st Respondent whilst referring to section 18 of the Medical Ordinance (as amended) raised this preliminary objection to the effect that, the Petitioner had failed to avail of appeal provided under the Medical Ordinance and thereby not entitled to come before this court in a discretionary remedy.

When considering the above provision of the Medical Ordinance it appears that the order or decision referred to above, will confine to a decision taken by SLMC acting within the frame work provided by the Medical Ordinance (as amended) and if the said SLMC had acted outside powers vested on SLMC we observe that there is an illegality taken place and in such a situation, it is the duty of this court to consider whether the statutory alternative is satisfactory or not.

This position was considered in the case of Somasunderam Vaniasinghem V. Forbes and another

[1993] 2 Sri LR 362 at 370 by Bandaranayake J as follow;

It may be that even though statute provides for an administrative appeal either to an administrative tribunal or a Minister the Court may not regard such an arrangement as impliedly excluding review if the applicant is entitled as a matter of law to have the order quashed as it is pointless then to have him pursue an administrative appeal on the merits. There is thus no rule requiring the exhaustion of administrative remedies.

A statutory remedy may be for a different purpose being usually an appeal on the merits whereas the ordinary discretionary remedy of review is for prevention of illegality.

In the said order Justice Bandaranayake further observed, (at page 371)

“In this area of the law, where there is no illegality the court should first look in to the question whether a statute providing for alternative remedies expressly or by necessary implication excludes judicial review. If not, where remedies overlap, the court should consider whether the statutory alternative remedy is satisfactory in all he circumstances ... if not, the court is entitled to review the matter in the exercise of its jurisdiction. Of course if there is an illegality there is no question but that the court can exercise its powers of review.”

As observed in this judgement, the SLMC had already acted beyond the powers vested on the SLMC under section 19C(i) of the Medical Ordinance (as amended) which act is ultra-vires and illegal and in the said circumstances, we observe that the Petitioner is entitled to come before this court by way of a discretionary remedy. We therefore see no merit in this preliminary objection. Petitioner failed to make a valid demand. As bserved in this judgement the Petitioner after obtaining the MBBS degree from SAITM a Degree Awarding Institute recognized under the Universities Act had visited the SLMC accompanied by an Senior Lecturer from SAITM Dr. Keerthi Attanayake to submit her application under section 29 (2) of the Medical Ordinance (as amended). At that stage the registrar of the SLMC who refused to accept her Application had refused to issue a letter to that effect and informed her,

a) The Minister of Health had already been informed by a letter from the President of the SLMC that students from SAITM were not registrable

b) The same was communicated publicly through several news paper advertisements.

The above position taken by the Petitioner was supported by an affidavit from the said Senior Lecturer Dr. Keerthi Attanayake and was not challenged by the 1st Respondent but in fact corroborated to the extent that the paper advertisement referred to above was produced marked 1R 20K with the statement of objection filed on behalf of the said Respondent.

In the said advertisement which was published on 11th November 2015 by order of the Council the Registrar had informed the public.

Accordingly based on the Report submitted by the team of inspectors the SLMC formulated an Official Report which was submitted to the Minister of Health on 04 September 2015 with the recommendation that THE DEGREE A WARDED BY SAITM SHOULD NOT BE RECOGNIZED FOR THE PURPOSE OF REGISTRATION UNDER THE MEDICAL ORDINACE.

As revealed from the documents filed before this court the Petitioner had sat for MBBS final Examination in May 2016 and she had been awarded with the MBBS Degree with effect from 30th May 2016 and visited SLMC to seek provisional Registration on 06.06.2016.

However as notified by the SLMC by the above advertisement the General Public was aware of the above notification, by 11th November 2015 and therefore acting on the above notification the Petitioner decided to demand the 1st Respondent to provisionally Registrar the Petitioner in the event she obtain a MBBS degree from SAITM a recognized Degree Awarding Institute on 10th March 2016. Even though the 1st Respondent had taken up the positions that, at the time the said demand was made, the Petitioner had not obtain a MBBS Degree, we see no merit in that argument for the reasons that at the time the Petitioner sent the said letter of demand she was well aware of the notification published in newspaper and was getting ready for her final examination which was scheduled for May 2016. Since the 1st Respondent did not responded to the letter dated 10th March a reminder was sent by the Attorney at Law on 4th April 2016 and the Attorney at Law representing the President of the SLMC had replied the said demand, by informing that any legal action would be vehemently resisted.

In these circumstances we are not inclined to accept the preliminary objection raised by the 1st Respondent.

Necessary party not before court.

In this regard the 1st Respondent’s argument was based on the failure by the Petitioner to name the Registrar SLMC as a Respondent to the present application.

Where a statute prescribed the manner in which the statutory power to be exercised the said power must be exercised in that manner alone and therefore one cannot argue that the functions entrusted by the Medical Ordinance with the Medical Council can be vested with the registrar, without any legislative provision in the said Ordinance.

The powers identified in section 20 of the Medical Ordinance (as amended) to maintain registers cannot be interpreted as powers vested with the Registrar under section 29 (1) and (2) of the said Ordinance.

In these circumstances we see a clear distinction between the powers vested with the registrar under section 20 and with the Medical Council under section 29 (1), (2) and therefore we see no reason to uphold the objection raised by the 1st Respondent.

Non-compliance of the Rules of the Court of Appeal (appellate procedure) Rules.

Whilst relying on Rule 3(1)(a) of the above rules the 1st Respondent had submitted that the Petitioner had failed to adhere to the above rule and therefore her application, should be dismissed in limine.

Rule 3(1)(a) of the Court of Appeal (Appellate Procedure) Rules which is relevant to the present objection reads as follows;

3 (1) (a) Every application made to the Court of Appeal for the exercise of the powers vested in the Court of Appeal by Articles 140 or 141 of the constitution shall be by way of a Petition together with an affidavit in support of the averments therein, and shall be accompanied by the originals of documents material to such application (or duly certified copies thereof) in the form of exhibits.

Where a Petitioners is unable to tender any such document he shall state the reason for such inability and seek the leave of court to furnish such document later. Where a Petitioner fails to comply with the provisions of this rule the court may, ex mere motu or at the instance of any party, dismiss such application.

As observe by this court, the parties to the present application had never complained of any failure from the petitioner to produce any document relevant when filling the present application before this court. As further observed by this court the majority of the documents filed by the Petitioner before this court are either letters exchanged between the parties, reports prepared by expert committees and submission submitted before such committees. In such a situation the Petitioner being a private party, will not be able to obtain originals of such documents to file before this court.

As further observed by this court, the said rule had also provided to submit duly certified copies but the rules are silent as to what is meant from the tenn “Certified Copies”.

Osborn’s Concise Law Dictionary described the term certified copy as, a copy of a public document, signed and certified as a true copy by the officer to whom custody the original is entrusted and admissible as evidence when the original would be admissible.

According to the above interpretation a certified copy can only be issued with regard to a public document and the person who issues the certified copy is the person who has the custody and authorized to certify a copy as true copy.

However when considering the documents before us, as observed earlier, majority of the documents are in private nature and in such a situation what is expected by the parties are to file papers to the satisfaction of court by submitting them with a certificate from the Attorney.

In this regard we have further concluded that under the said provisions, the Petitioner has a legal right for the performance of a legal duty from the 1st Respondent. That is to say that the Petitioner has a legal right to provisionally register under section 29 (2) of the Medical Ordinance (as amended) since she has fulfilled the necessary requirements I 42 under the said Ordinance. In this regard this court is further mindful of the Supreme Court decision in Credit Information Bureau of Sri Lanka V. Messns lafferiee an lafferjee Private Limited (2005) 1 Sri LR 89 where J.A.N. de. Silva J (as he was then) has identified some of the conditions precedent to the issue of writ of Mandamus.

For the forging reasons this court decides to grant the relief as prayed by the Petitioner in paragraphs (e), (t) and (g) to the Petition.

Since the arguments placed before this court was limited to the provisional registration under section 29 (2) of the Medical Ordinance (as amended) this court will not make any order with regard to the relief prayed in paragraphs (b), (c) and (d) to the Petition.

Application allowed with cost.

Vijitha K. Malalgoda PC J

PRESIDENT OF THE COURT OF APPEAL

S. Thurairaja PC J

JUDGE OF THE COURT OF APPEAL